A recent High Court decision underlines the importance of making sure that you have a proper and registered estate or interest in any land under Torrens title in NSW.
In the matter of Cassegrain v Gerard Cassegrain & Co Pty Ltd, the High Court explored the extent to which a registered title in Torrens title land could be set aside when ownership had been achieved though fraud. The twist? The registered owner wasn't the one who committed the fraud.
Felicity became the registerd sole owner of the property – thanks to a two part process effected largely by her husband, Claude. Initially, Felicity became a joint tenant in the property together with Claude – by a transfer from a family company that was tainted by fraud (known to Claude). Subsequently, Claude transferred his interest in the property to Felicity, but without anything being paid by her for that transfer.
Given the circumstances, the High Court reached the conclusion that Felicity couldn't be held accountable for her husband's fraud because she was unaware of what he had done. Felicity was able to keep her title to the half share interest in the property that she had acquired from the family company.
The High Court did, however, set aside on the application of the family company her title to the further half share interest that she acquired from Claude because on that subsequent transfer and its circumstances she was not a bona fide buyer for value of an interest in the land.
The majority in the High Court then declared that Felicity was the registered owner of a half share interest in the land, but with the other half held by her in trust for the family company – from which the land had originally been transferred to the couple as joint tenants.
As you can see, it pays to make sure you go by the book in relation to any dealings in land under Torrens title – that way, you can avoid a costly and difficult foray into the Courts.
This is something our Property team is always mindful of and we work hard to ensure our clients achieve registration of their land titles and avoid being in a position of having to go through the Court system for declarations of entitlement in regards to land title.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.